https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3938

Mute & 4 others v Wambugu (Environment and Land Case E011 of 2024) [2026] KEELC 3938 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3938 (KLR) Republic of Kenya In the Environment and Land Court at Nyeri Environment and Land Case E011 of 2024 JO Olola, J June 30, 2026 Between Emily Wanjiru Mute 1st Applicant Rosemary Wairimu Muriithi 2nd Applicant George Kariuki Mute 3rd Applicant Jennifer Wanjiku Mute 4th Applicant Jane Mumbi Chege 5th Applicant and Mute Wathoko Wambugu Respondent Ruling 1.By the Notice of Motion dated 4th June 2024, Emily Wanjiru Mute and 4 Other Applicants pray for the following:1.Spent;2.Spent;3.That pending the hearing of the main suit filed herein, the Respondent be restrained from gifting and/or sharing the suit property in the exclusion of the Applicants herein and other deserving members of the family;4.That the process of sub-division of parcel of land known as Title No. Ruirii Block 1/Muthangira/ 102 and the resultant 4 plots numbers 658, 659, 660 & 661 be declared null and void;5.That the orders granted herein be served upon the Land Registrar Nyeri Land Office; and6.That the costs of this application be provided for. 2.The application is supported by an Affidavit sworn by the 1st Applicant on 4th June 2024 and is premised inter alia on the grounds that:i.The Respondent herein is their biological father;ii.The Respondent had seen it reasonable to offer them his parcel of land known as Mugunda/Ruirii Block 1/Muthangira/102 as gifts to be distributed among his children;iii.The Respondent has initiated sub-division of the subject parcel of land without fairness and in consultation with other members of the family;iv.The subsequent subdivision is aimed at gifting selected members of the family and in the process sidelining other children who are now aggrieved by the unfair action by their father, and stand to suffer great and irreparable loss which cannot be compensated as they will lose their inheritance;v.The mode of distribution adopted by the Applicant’s father does not and has not shown equity, fairness and equality as he has opted to sideline some of his children;vi.The Respondent did not use wisdom in the distribution as he never called or summoned all the beneficiaries to hear their views and from their averments undertake a justified distribution of the gifts;vii.The unfair sub-division and improper distribution of the subject parcel of land has ignited animosity among the siblings and there is a risk that they may degenerate to hostility and aggression; andviii.That it is only fair and justified that the whole process of gifting the parcel of land be stopped and/or suspended until an agreed mode of distribution is agreed among all the family members. 3.Mute Wathoko Wambugu (the Respondent) is opposed to the application. In that respect, the Respondent has filed both Grounds of Opposition dated 4th July 2024 and also filed a Replying Affidavit sworn by himself on 8th July 2024. 4.The Respondent avers that both the application and the suit are misconceived, incompetent, bad in law, frivolous, vexatious and untenable in law. It is the Respondent’s case that his children cannot compel him to share his property in a particular manner during his lifetime. 5.The Respondent further avers that Title No. Mugunda/Ruirii Block 1 Muthangira/102 was sub-divided on 31st January 2024 and he has since transferred the two resultant sub-divisions to his daughters Jecintar Wangari Kagunya and Lucy Mukuhi Mute. It is his case that as an absolute proprietor, he was free to deal with his property as he wished. 6.I have carefully perused and considered the application as well as the response thereto. I have similarly perused and considered the submissions placed before the Court by the Applicants acting in person and Mr. Wahome Gikonyo, Learned Counsel for the Defendant. 7.By their application before the Court, the Applicants pray for an order restraining the Respondent from gifting and/or sharing out the parcel of land known as Mugunda/Ruirii Block 1/ Muthangira/102 to the exclusion of themselves and other deserving family members. In addition, they urge the Court to declare that the process of sub-division of the suit property and the resultant titles were null and void. 8.The Respondent is opposed to the application. He avers that he is the absolute registered proprietor of the suit property and that as such he was free to deal with the same in whichever manner he wishes. 9.From the material placed before the Court there was no dispute that the suit property belongs to and is registered in the name of the Respondent. The five (5) Applicants who are all the children of the Respondent are aggrieved that their father had sub-divided the property and gifted portions thereof to some of his children while leaving out others. The Applicants aver that the mode of distribution adopted by their father does not and has not demonstrated equity, fairness and equality as the Respondent has opted to sideline some of his children. The Respondent did not deny that he has gifted portions of the land to some of his children. It was his case that his children cannot compel him to share out his property in any particular manner. 10.It was indeed difficult not to agree with the position taken by the Respondent. Under common law principles an individual has absolute freedom of ownership over their property which includes the right to dispose of it as they see fit without interference from their offspring. Dealing with a similar matter in Oganga & Another –vs- Orangi & 3 Others (2023) KEELC 16348 (KLR), Munyao Sila J. (as he then was) held thus:“.... the 2nd and 3rd Defendants had no right to compel the 1st Defendant to subdivide his land in a certain way. Neither can they purport to attempt to reverse a sale that was freely entered into by their late father. The property was never held in their trust......It is time that children stopped having a notion that what belongs to their parents also belongs to them in equal measure, and that their parents must subdivide and distribute land to them in a particular manner.” 11.Considering a similar matter in Muriuki Marigi –vs- Richard Marigi Muriuki & 2 Others (1997) eKLR, the Court of Appeal held as follows:“The appellant as the registered owner of the suit property is still alive. His property is not yet available for sub-division and distribution among his wives and children except if he personally on his own free will decides to sub-divide and distribute it among them. He may not be urged, directed or ordered to do it against his own will.” 12.Arising from the foregoing, it was clear to me that the Applicants had failed to prove that they have a prima facie case with any probability of success at the trial. There is no law that obligates their father to gift them his land during his lifetime and this Court does not find any basis to restrain their father in the manner sought in the application. 13.Accordingly, I hereby find and hold that there is absolutely no merit in the Notice of Motion dated 4th June 2024. The same is misconceived and without any basis in law. It is hereby dismissed with costs to the Respondent. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 30TH DAY OF JUNE, 2026....................................J.O. OLOLAJUDGEIn the presence of:a) Ms. Firdaus Court Assistant.b) No appearance for the Applicantsc) Mr. Wahome Gikonyo Advocates for the Respondent/Defendant